New Government Proposals on Judicial Review to Curb Weak Claims

LEGAL AID ONLY TO BE PAID WHERE PERMISSION GRANTED

Chris Grayling, Justice Minister, in a Sunday Telegraph interview on 7th April 2013, has placed the funding of judicial review permission applications and of claims by migrants under the microscope Bryan McGuire QC and Jack Parker.

The first target for the Minister is applications for permission for Judicial Review. The concern is that too much money is being spent by claimants' lawyers in bringing poor claims, and by their opponents in having to defend them. Thus for instance last year there were 845 asylum judicial reviews in which permission was refused. The cure, the Minister considers, is for legal aid only to cover these bills retrospectively, if (and only if) permission to proceed is granted by the Court.

There is a broad parallel with the "no win no fee" personal injury regime over recent years. The cost of funding losing claims would be absorbed by claimants' lawyers. The arguments in support would be similar: the public should not be expected to bear the burden of weak claims. The Minister plainly has asylum law in mind.

But it remains to be seen how such a scheme might operate in practice across the range of public law work. A number of questions arise:

a) Would solicitors take on more involved types of work such as community care or children's rights where detailed and expensive pre-hearing work was required? Or would the need for solicitor self-funding of preparation spell the end of this class of work? Would the "take the rough with the smooth" approach to personal injury litigation transfer smoothly to public law claim preparation? If representation cannot be found, does that open the door to human rights challenges?

b) Would the claimant's solicitor be faced with the need to pay the court fee?

c) Is there a danger that, in order for the legal aid bill to be calculated, permission would need to be to be determined in all cases? Or for a "what would have happened if the case had not settled?" hearing? Would there be a Bahta/ Croydon dispute in every case as to who would have won? It is hard to see why a claimant solicitor would not pursue a determination that he would have obtained permission and won the claim but for agreement having been reached.

d) What would happen if papers were drafted but the case settles before issuing?

The proposals are not yet at a stage where detailed answers can be given to these questions. However, both claimant solicitors and public authorities will need to be alive to the issues at stake if and when the proposals are brought forward as they are likely to have a significant impact on the approach of public law solicitors to legal aid work.

In a second announcement, also raised in the interview, the Minister explored the question of whether foreign migrants might be denied public funding in their first year in the country. These latter changes are unlikely to secure the support of the Liberal Democrats, however, and would be considered only after the general election.